Title
AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND THE SOCIALIST REPUBLIC OF VIETNAM ON TRADE RELATIONS
Preamble
The Government of the United States of America and the Government of the Socialist Republic of Vietnam (hereinafter referred to collectively as "Parties" and individually as "Party"),
Desiring to establish and develop mutually beneficial and equitable economic and trade relations on the basis of mutual respect for their respective independence and sovereignty;
Acknowledging that the adoption of and compliance with international trade norms and standards by the Parties will aid the development of mutually beneficial trade relations, and should be the underlying basis of those relations;
Noting that Vietnam is a developing country at a low level of development, is in the process of economic transition and is taking steps to integrate into the regional and world economy by, inter alia, joining the Association of Southeast Asian Nations (ASEAN), the ASEAN Free Trade Area (AFTA), and the Asia Pacific Economic Cooperation forum (APEC), and working toward membership in the World Trade Organization (WTO);
Having agreed that economic and trade ties and intellectual property rights protection are an important and necessary element in the strengthening of their bilateral relations; and
Being convinced that an agreement on trade relations between the Parties will best serve their mutual interests,
Have agreed as follows:
Body
Chapter I. TRADE IN GOODS
Article 1. Most Favored Nation (Normal Trade Relations) (1)
1. Each Party shall accord immediately and unconditionally to products originating in or exported to the territory of the other Party treatment no less favorable than that accorded to like products originating in or exported to the territory of any third country in all matters relating to:
A. customs duties and charges of any kind imposed on or in connection with importation or exportation, including the method of levying such duties and charges;
B. methods of payment for imports and exports, and the international transfer of such payments;
C. rules and formalities in connection with importation and exportation, including those relating to customs clearance, transit, warehouses and transshipment;
D. taxes and other internal charges of any kind applied directly or indirectly to imported products;
E. laws, regulations and other requirements affecting the sale, offering for sale, purchase, transportation, distribution, storage and use of products in the domestic market; and
F. the application of quantitative restrictions and the granting of licenses.
2. The provisions of paragraph 1 of this Article shall not apply to action by a Party which is consistent with such Party's obligations under the World Trade Organization and the agreements administered thereby. A Party shall nonetheless extend to the products originating in the territory of the other Party most-favored nation treatment in respect of any tariff reductions resulting from multilateral negotiations under the auspices of the World Trade Organization provided such Party accords such benefits to all other WTO members.
3. The provisions of paragraph 1 of this Article shall not apply to:
A. advantages accorded by either Party by virtue of such Party's full membership in a customs union or free trade area, and
B. advantages accorded to third countries for the facilitation of frontier traffic.
4. The provisions of sub-paragraph 1.F of this Article shall not apply to trade in textiles and textile products.
Article 2. National Treatment
1. Each Party shall administer tariff and nontariff measures affecting trade in a manner which affords meaningful competitive opportunities for products of the other Party with respect to domestic competitors.
2. Accordingly, neither Party shall impose, directly or indirectly, on the products of the other Party imported into its territory, internal taxes or charges of any kind in excess of those applied, directly or indirectly, to like domestic products.
3. Each Party shall accord to products originating in the territory of the other Party treatment no less favorable than that accorded to like domestic products in respect of all laws, regulations and other requirements affecting their internal sale, offering for sale, purchase, transportation, distribution, storage or use.
4. In addition to the obligations of paragraphs 2 and 3 of this Article, the charges and measures described in paragraphs 2 and 3 of this Article shall not otherwise be applied to imported or domestic products so as to afford protection to domestic production.
5. The obligations of paragraphs 2, 3 and 4 of this Article shall be subject to the exceptions set forth in Article I of GATT 1994 and Annex A to this Agreement.
6. Consistent with the provisions of GATT 1994, the Parties shall ensure that technical regulations and standards are not prepared, adopted or applied with a view to creating obstacles to international trade or to protect domestic production. Furthermore, each Party shall accord products imported from the territory of the other Party treatment no less favorable than the better of the treatment accorded to like domestic products or like products originating in any third country in relation to such technical regulations or standards, including conformity testing and certification. Accordingly, the Parties shall:
A. ensure that any sanitary or phytosanitary measure which is not inconsistent with the provisions of the GATT 1994, is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient evidence (i.e., a risk assessment), taking into account the availability of relevant scientific information and regional conditions, such as pest free zones;
B. ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. For this purpose, technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking into account the risks non- fulfillment would create. Such legitimate objectives include national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment. In assessing such risks, relevant elements of consideration include available scientific and technical information, related processing technology or intended end- uses of products.
7. Upon the entry into force of this Agreement, each Party shall grant trading rights to the nationals and companies of the other Party. With respect to Vietnam, such trading rights shall be granted in accordance with the following schedule:
A. Upon entry into force of this Agreement, all domestic enterprises shall be allowed to engage in trading activities in all products, subject to restrictions listed in Annexes Band C.
B. Upon entry into force of this Agreement, enterprises with capital directly invested by U.S. nationals and companies shall be allowed, subject to the restrictions in Annexes B and C, to import goods and products to be used in, or in connection with their production or export activities whether or not such imports are specifically identified in their initial investment license.
C. Three years after entry into force of this Agreement, enterprises with capital directly invested by U.S. nationals and companies, in production and manufacturing sectors, shall be allowed to engage in trading activities, subject to the restrictions listed in Annexes B, C and D, and provided such enterprises are (i) engaged in substantial business activities in the production and manufacturing sectors; and (ii) are lawfully operating in Vietnam.
D. Three years after entry into force of this Agreement, U.S. nationals and companies shall be allowed to enter into joint ventures with Vietnamese counterparts to engage in trading activities in all products, subject to restrictions listed in Annexes B, C and D. Equity contributed by U.S. companies shall not exceed 49% of such joint ventures' legal capital. Three years thereafter, this limitation on U.S. ownership shall be 51%.
E. Seven years after entry into force of this Agreement, U.S. companies shall be allowed to establish 100% U.S.- owned companies to engage in trading activities in all products, subject to restrictions listed in Annexes B, C and D.
8. If a Party has not acceded to the International Convention on the Harmonized Commodity Description and Coding System, it will undertake every reasonable effort to do so as soon as possible, but no later than one year after the entry into force of this Agreement.
Article 3. General Obligations with Respect to Trade
1. The Parties shall seek to achieve a satisfactory balance of market access opportunities through the satisfactory reciprocation of reductions in tariffs and nontariff barriers to trade in goods resulting from multilateral negotiations.
2. The Parties shall except as specifically provided in Annexes B and C to this Agreement, eliminate all import and export restrictions, quotas, licensing requirements, and controls for all product and service categories, other than those that would be permitted by GATT 1994.
3. The Parties shall, within two years of the entry into force of this Agreement, limit all fees and charges of whatever character (other than import and export duties and other taxes within the purview of Article 2 of this Chapter) imposed on or in connection with importation or exportation to an amount approximate to the cost of services rendered, and ensure that such fees and charges do not represent an indirect protection to domestic products or a taxation of imports or exports for fiscal purposes;
4. The Parties shall, within two years of the entry into force of this Agreement, adopt a system of customs valuation based on the transaction value of the imported merchandise on which duty is assessed, or of like merchandise, rather than on the value of merchandise of national origin or on arbitrary or fictitious values, with the transaction value being the price actually paid or payable for the goods when sold for export to the country of importation in accordance with the standards established in the Agreement on Implementation of Article VII of the GATT 1994; and
5. Within two years of entry into force of this Agreement, the Parties shall ensure that the fees and charges referred to in paragraph 3 of this Article and the customs valuation system referred to in paragraph 4 of this Article are imposed or implemented uniformly and consistently throughout each Partyâs customs territory.
6. In addition to the obligations set forth in Article 1, Vietnam shall provide tariff treatment to products originating in the customs territory of the United States in accordance with the provisions of Annex E.
7. Neither Party shall require its nationals or companies to engage in barter or countertrade transactions with nationals or companies of the other Party. Nevertheless, where nationals or companies decide to resort to barter or countertrade operations, the Parties may furnish them information to facilitate the transaction and assist them as they would with respect to other export and import operations.
8. The United States shall consider Vietnam's eligibility for the Generalized System of Preferences.
Article 4. Expansion and Promotion of Trade
Each Party shall encourage and facilitate the holding of trade promotional events such as trade fairs, exhibitions, missions and seminars in its territory and in the territory of the other Party. Similarly, each Party shall encourage and facilitate the participation of its respective nationals and companies in such events. Subject to the laws in force within their respective territories, the Parties agree to allow the import and re-export on a duty free basis of all articles for use in such events, provided that such articles are not sold or otherwise transferred.
Article 5. Government Commercial Offices
1. Subject to its laws and regulations governing foreign missions, each Party shall allow government commercial offices of the other Party to hire host-country nationals and, subject to immigration laws and procedures, third-country nationals.
2. Each Party shall ensure unhindered access of host-country nationals to government commercial offices of the other Party.
3. Each Party shall allow the participation of its nationals and companies in the commercial activities of the other Party's government commercial offices.
4. Each Party shall allow access by government commercial office personnel of the other Party to the relevant host-country officials, and to representatives of nationals and companies of the host Party.
Article 6. Emergency Action on Imports
1. The Parties agree to consult promptly at the request of either Party whenever either actual or prospective imports of products originating in the territory of the other Party cause or threaten to cause or significantly contribute to market disruption. Market disruption exists within a domestic industry whenever imports of an article, like or directly competitive with an article produced by such domestic industry, are increasing rapidly, either absolutely or relatively, so as to be a significant cause of material injury, or threat thereof, to such domestic industry. The consultations provided in this paragraph shall have the objectives of (a) presenting and examining the factors relating to such imports that may be causing or threatening to cause or significantly contributing to market disruption, and (b) finding means of preventing or remedying such market disruption. Such consultations shall be concluded within sixty days from the date of the request for such consultations, unless the Parties agree otherwise.
2. Unless a different solution is mutually agreed upon during the consultations, the importing Party may (a) impose quantitative import limitations, tariff measures or any other restrictions or measures it deems appropriate, and for such period of time it deems necessary, to prevent or remedy threatened or actual market disruption, and (b) take appropriate measures to ensure that imports from the territory of the other Party comply with such quantitative limitations or other restrictions introduced in connection with market disruption. In this event, the other Party shall be free to deviate from its obligations under this Agreement with respect to substantially equivalent trade.
3. Where in the judgment of the importing Party, emergency action is necessary to prevent or remedy such market disruption, the importing Party may take such action at any time without prior notice or consultation, on the condition that consultations shall be effected immediately after taking such action.
4. The Parties acknowledge that the elaboration of the market disruption safeguard provisions in this Article is without prejudice to the right of either Party to apply its laws and regulations applicable to trade in textiles and textile products, and its laws and regulations applicable to unfair trade, including antidumping and countervailing duty laws.
Article 7. Commercial DisputesFor the Purposes of Chapter I of this Agreement:
1. Nationals and companies of either Party shall be accorded national treatment with respect to access to all competent courts and administrative bodies in the territory of the other Party, as plaintiffs, defendants or otherwise. They shall not be entitled to claim or enjoy immunity from suit or execution of judgment, proceedings for the recognition and enforcement of arbitral awards, or other liability in the territory of the other Party with respect to commercial transactions. They also shall not claim or enjoy immunities from taxation with respect to commercial transactions, except as may be provided in other bilateral agreements.
2. The Parties encourage the adoption of arbitration for the settlement of disputes arising out of commercial transactions concluded between nationals or companies of the United States of America and nationals or companies of the Socialist Republic of Vietnam. Such arbitration may be provided for by agreements in contracts between such nationals and companies, or in separate written agreements between them.
3. The parties to such transactions may provide for arbitration under any internationally recognized arbitration rules, including the UNCITRAL Rules of December 15, 1976, and any modifications thereto, in which case the parties should designate an Appointing Authority under said rules in a country other than the United States of America or the Socialist Republic of Vietnam.
4. The parties to the dispute, unless otherwise agreed between them, should specify as the place of arbitration a country other than the United States of America or the Socialist Republic of Vietnam, that is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, June 10, 1958.
5. Nothing in this Article shall be construed to prevent, and the Parties shall not prohibit, the parties from agreeing upon any other form of arbitration or on the law to be applied in such arbitration, or other form of dispute settlement which they mutually prefer and agree best suits their particular needs.
6. Each Party shall ensure that an effective means exists within its territory for the recognition and enforcement of arbitral awards.
Article 8. State Trading
1. The parties may establish or maintain a state enterprise, or grant to any enterprise, formally or in effect, exclusive or special privileges, to import and export the products listed in Annex C, provided however, that any such enterprise shall, in its purchases or sales involving either imports or exports, act in a manner consistent with the general principles of non-discriminatory treatment prescribed in this Agreement for governmental measures affecting imports or exports by private traders.
2. The provisions of paragraph 1 of this Article shall be understood to require that such enterprises shall, having due regard to the other provisions of this Agreement, make any such purchases or sales solely in accordance with commercial considerations, including price, quality, availability, marketability, transportation and other conditions of purchase or sale, and shall afford the enterprises of the other Party adequate opportunity, in accordance with customary business practice, to compete for participation in such purchases or sales.
3. The provisions of paragraph 1 of this Article shall not apply to imports of products for immediate or ultimate consumption in government use and not otherwise for resale or use in the production of goods for sale. With respect to such imports, each Party shall accord to the trade of the other Party fair and equitable treatment.
Article 9. Definitions
As used in this Chapter, the terms set forth below shall have the following meaning:
1. "company," means any entity constituted or organized under applicable law, whether or not for profit, and whether privately or governmentally owned or controlled, and includes a corporation, trust, partnership, sole proprietorship, branch, joint venture, association, or other organization.
2. "enterprise," means a company.
3. "national," means a natural person who is a national of a Party under its applicable law.
4. "commercial dispute," means a dispute between parties to a commercial transaction which arises out of that transaction.
5. "trading rights," means the right to engage in import or export activities.
Chapter II. INTELLECTUAL PROPERTY RIGHTS
Article 1. Objectives, Principles and Scope of Obligations
1. Each Party shall provide in its territory to the nationals of the other Party adequate and effective protection and enforcement of intellectual property rights.
2. The Parties recognize the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives, and ensure that measures to protect and enforce intellectual property rights do not themselves become barriers to legitimate trade.
3. To provide adequate and effective protection and enforcement of intellectual property rights, each Party shall, at a minimum, give effect to this Chapter and the substantive economic provisions of:
A. the Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms, 1971 (Geneva Convention);
B. the Berne Convention for the Protection of Literary and Artistic Works, 1971 (Berne Convention);
C. the Paris Convention for the Protection of Industrial Property, 1967 (Paris Convention);
D. the International Convention for the Protection of New Varieties of Plants, 1978 (UPOV Convention (1978)), or the International Convention for the Protection of New Varieties of Plants, 1991 (UPOV Convention (1991)); and
E. the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974).
If a Party has not acceded to the specified text of any such Conventions on or before the date of entry into force of this Agreement, it shall promptly make every effort to accede.
4. A Party may implement in its domestic law more extensive protection and enforcement of intellectual property rights than is required under this Chapter, provided that such protection and enforcement are not inconsistent with this Chapter.
Article 2. Definitions
For Purposes of this Chapter:
1. "confidential information" includes trade secrets, privileged information, and other undisclosed information that has not become subject to an unrestricted public disclosure under the Party's domestic law.
2. "encrypted program-carrying satellite signal" means a program-carrying satellite signal that is transmitted in a form whereby the aural or visual characteristics, or both, are modified or altered for the purpose of preventing the unauthorized reception of a program carried in that signal by persons without the authorized equipment that is designed to eliminate the effects of such modification or alteration.
3. "intellectual property rights" refers to copyrights and related rights, trademarks, patents, layout designs (topographies) of integrated circuits, encrypted program-carrying satellite signals, confidential information (trade secrets), industrial designs and rights in plant varieties.
4. "lawful distributor of an encrypted satellite signal" in a Party means the person who originally transmitted the signal.
5. "national" of a Party shall, in respect of the relevant intellectual property rights, be understood as those natural or legal persons that would meet the criteria for eligibility for protection provided for in the Paris Convention, the Berne Convention, the Geneva Convention, the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite, the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, the UPOV Convention (1978), the UPOV Convention (1991) or the Treaty on Intellectual Property in Respect of Integrated Circuits adopted at Washington in 1989, as if each Party were a Party to those Conventions, and with respect to intellectual property rights that are not the subject of these Conventions, "national of a Party" shall be understood at least to include any person that is acitizen or permanent resident of that Party.
6. "public" includes, with respect to rights of communication and performance of works provided for under Articles 11, 11bis(1) and 14(1)(ii) of the Berne Convention, with respect to dramatic, dramatico-musical, musical and cinematographic works, at least, any aggregation of individuals intended to be the object of, and capable of perceiving, communications or performances of works, regardless of whether they can do so at the same or different times or in the same or different places, provided that such an aggregation is larger than a family and its immediate circle of acquaintances or is not a group comprising a limited number of individuals having similarly close ties that has not been formed for the principal purpose of receiving such performances and communications of works.
7. "right holder" includes the right holder personally, any other natural or legal person authorized by the right holder who is an exclusive licensee of the right, or other authorized persons, including federations and associations, having legal standing under domestic law to assert such rights.
Article 3. National Treatment
1. Each Party shall accord to nationals of the other Party treatment no less favorable than it accords to its own nationals with regard to the acquisition, protection, enjoyment and enforcement of all intellectual property rights and any benefits derived therefrom.
2. A Party shall not, as a condition of according national treatment under this Article, require right holders to comply with any formalities or conditions (including fixation, publication or exploitation in the territory of a Party) in order to acquire, enjoy, enforce and exercise rights or benefits in respect of copyright and related rights.
3. A Party may derogate from paragraph 1 in relation to its judicial and administrative procedures for the protection or enforcement of intellectual property rights, including any procedure requiring a national of the other Party to designate for service of process an address in the Party's territory or to appoint an agent in the Party's territory, if the derogation is consistent with the relevant Convention listed in Article 1.3 above, provided that such derogation:
A. is necessary to secure compliance with measures that are not inconsistent with this Agreement; and
B. is not applied in a manner that would constitute a restriction on trade. No Party shall have any obligation under this Article with respect to procedures provided
4. in multilateral agreements concluded under the auspices of the World Intellectual Property Organization relating to the acquisition or maintenance of intellectual property rights.
Article 4. Copyright and Related Rights
1. Each Party shall protect all works that embody original expression within the meaning of the Berne Convention. In particular:
A. all types of computer programs are literary works within the meaning of the Berne Convention and each Party shall protect them as such; and
B. compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations, shall be protected as works.
The protection a Party provides under subparagraph (B) shall not extend to the data or material itself, or prejudice any copyright subsisting in that data or material.
2. Each Party shall provide to authors and their successors in interest those rights enumerated in the Berne Convention in respect of works covered by paragraph 1, and shall provide the right to authorize or prohibit:
A. the importation into the Party's territory of copies of the work;
B. the first public distribution of the original and each copy of the work by sale, rental or otherwise;
C. the communication of a work to the public; and
D. the rental of the original or a copy of a computer program for the purposes of commercial advantage.
Subparagraph (D) shall not apply where the copy of the computer program is not itself an essential object of the rental. Each Party shall provide that putting the original or a copy of a computer program on the market with the right holder's consent shall not exhaust the rental right.
3. Each Party shall provide that for copyright and related rights:
A. any person acquiring or holding any economic rights may freely and separately transfer such rights by contract; and
B. any person acquiring or holding any such economic rights by virtue of a contract, including contracts of employment underlying the creation of works and sound recordings, shall be able to exercise those rights in its own name and enjoy fully the benefits derived from those rights.
4. Each Party shall provide that, where the term of protection of a work is to be calculated on a basis other than the life of a natural person, the term shall be not less than 75 years from the end of the calendar year of the first authorized publication of the work or, failing such authorized publication within 25 years from the creation of the work, not less than 100 years from the end of the calendar year of the creation of the work.
5. Neither Party may grant translation or reproduction licenses permitted under the Appendix to the Berne Convention where legitimate needs in that Party's territory for copies or translations of the work could be met by the right holder's voluntary actions but for obstacles created by the Party's measures.
6. Each Party shall provide to the right holder in a sound recording the right to authorize or prohibit:
A. the direct or indirect reproduction, in whole or in part, of the sound recording;
B. the importation into the Party's territory of copies of the sound recording;
C. the first public distribution of the original and each copy of the sound recording by sale, rental or otherwise; and
D. the rental, lease or lending of the original or a copy of the sound recording for the purposes of commercial advantage.
Each Party shall provide that putting the original or a copy of a sound recording on the market with the right holder's consent shall not exhaust the rental right.
7. Each Party shall provide to performers the right to authorize or prohibit:
A. the fixation of their live musical performances in a sound recording;
B. the reproduction of unauthorized fixations of their live musical performances in a sound recording;
C. the transmission or other communication to the public of sounds in a live musical performance; and
D. the distribution, sale, rental, disposal or transfer of the unauthorized fixations of their live performances in a sound recording, regardless of where the fixations were made.
8. Each Party shall, through operation of this Agreement, apply the provisions of Article 18 of the Berne Convention to works and, with such modifications as may be necessary, to existing sound recordings.
9. Each Party shall confine limitations or exceptions to the rights provided for in this Article to certain special cases that do not conflict with a normal exploitation of the work, and do not unreasonably prejudice the legitimate interests of the right holder.
Article 5. Protection of Encrypted Program-Carrying Satellite Signals
1. For serious violations involving the protection of encrypted program-carrying satellite signals, each Party shall make available appropriate remedies, including civil and criminal remedies.
2. Serious violations involving the protection of encrypted program-carrying satellite signals shall include the following:
A. The manufacture, assembly, modification, or distribution (including import, export, sale or lease) of a device or system, by any person knowing or having reason to know that the device or system is primarily of assistance in the unauthorized decoding of an encrypted program-carrying satellite signal; and
B. The willful receipt or further distribution of an encrypted program-carrying satellite signal that has been decoded without the authorization of the lawful distributor of the signal (regardless of the location of such person) or of any other person or persons designated by the original transmitter as authorized distributors of such signal in such Party.
3. Each Party shall provide that civil remedies provided for pursuant to paragraph 1 of this Article shall be available to any person that holds an interest in the encrypted program- carrying satellite signal or the content thereof.
Article 6. Trademarks
1. For the purposes of this Agreement, a trademark consists of any sign, or any combination of signs, capable of distinguishing the goods or services of one person from those of another, including words, personal names, designs, letters, numerals, combinations of colors, figurative elements or the shape of goods or of their packaging. Trademarks shall include service marks, collective marks and certification marks.
2. Each Party shall provide to the owner of a registered trademark the right to prevent all persons not having the owner's consent from using in commerce identical or similar signs for goods or services that are identical, or similar to those goods or services in respect of which the owner's trademark is registered, where such use would result in a likelihood of confusion. In the case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed. The rights described above shall not prejudice any prior rights, nor shall they affect the possibility of making rights available on the basis of use.
3. A Party may make registrability depend on use. However, actual use of a trademark shall not be a condition for filing an application for registration. Neither Party may refuse an application solely on the ground that intended use has not taken place before the expiry of a period of three years from the date of application for registration.
4. Each Party shall provide a system for the registration of trademarks, which shall include:
A. examination of applications;